Appeal from the Circuit Court of Cook County. No. 82 C 488 Honorable Vincent M. Gaughan, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Robert E. Gordon
PRESIDING JUSTICE ROBERT E. GORDON delivered the judgment of the court, with opinion.
Justices Lampkin and Palmer concurred in the judgment and opinion.
¶ 1 Defendant Clayton Rockman was convicted in 1983 by a jury of first-degree murder. At the sentencing hearing held on July 21, 1983, the trial judge made a factual finding that the murder was exceptionally brutal and heinous. At that time, this factual finding made defendant eligible for an extended-term sentence, and defendant was sentenced to 75 years in the Illinois Department of Corrections. Without an extended-term sentence, the maximum sentence allowed under the statute would have been 40 years.
¶ 2 In Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), the United States Supreme Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." In the case at bar, the fact that increased defendant's penalty beyond the statutory maximum was not submitted to a jury and was not proved beyond a reasonable doubt. However, the Illinois Supreme Court held in People v. De La Paz, 204 Ill. 2d 426, 439 (2003), that "Apprendi does not apply retroactively." As a result, defendant concedes, as he must, that Apprendi cannot help him. Instead, on this appeal, defendant argues that the extended-term portion of his sentence is void.
¶ 3 Since 1991, defendant has made several collateral attacks on his conviction and sentence, including several post-conviction petitions, two petitions for relief from judgment, a habeas corpus petition, and a motion to vacate a void judgment.
¶ 4 This current appeal concerns defendant's "Motion to Resentence Defendant Within Prescribed Statutory Limits Instanter" filed on March 16, 2010. In this motion, defendant argued that, pursuant to our supreme court's decision in People v. Swift, 202 Ill. 2d 378 (2002), the portion of his sentence that exceeds the 40-year statutory maximum is void. In Swift, our supreme court held that, where a jury is asked to determine only the basic elements of first-degree murder, the plain language of the statute makes defendant eligible only for the sentencing range specified for first-degree murder, but not for any extended term. Swift, 202 Ill. 2d at 388, 392.
¶ 5 In the case at bar, the trial court was not persuaded that defendant's voidness argument was distinguishable from Apprendi, and thus it dismissed defendant's motion. For the following reasons, we affirm.
¶ 7 Since defendant makes a strictly legal argument and the facts of his underlying case are not at issue, we need recite only the facts of the motion currently on appeal.
¶ 8 In his "Motion to Resentence Defendant Within Prescribed Statutory Limits Instanter," filed March 16, 2010, defendant claimed that his extended-term sentence was void, based on the Illinois Supreme Court's decision in People v. Swift, 202 Ill. 2d 378 (2002). Although defendant's motion was neither a post-conviction petition nor a petition for relief from judgment under section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2008)), a void order "may be attacked at any time or in any court, either directly or collaterally." People v. Thompson, 209 Ill. 2d 19, 25 (2004). The trial court appointed a public defender on March 23, 2010, but defendant chose to waive appointed counsel and proceed pro se. Counsel then moved to withdraw, and the trial court allowed defendant to represent himself. On July 17, 2010, the State moved to dismiss; and, on August 12, 2010, a hearing was held.
¶ 9 At the hearing, defendant argued pro se on behalf of his motion. At the outset, defendant stated that his current motion did not concern Apprendi. Defendant stated that he recalled being before the trial judge in 2005 and that the trial judge "had unequivocally explained to [him] that Apprendi was not retroactive on collateral review."
¶ 10 Defendant stated that his current motion was "a motion for resentencing within the prescribed statutory maximum" and that "it's dealing with a void judgment." Defendant stated that, in Swift, the Illinois Supreme Court had held that the sentencing range for first-degree murder was 20 to 60 years. However, defendant observed that, at the time that he was sentenced, the statute provided that, if ...